Center for Constitutional Rights Class Action Lawsuit
Stop-and-Frisk on Trial: Damning Testimony, Damning Evidence
Revolution #302, May 1, 2013
In 2008, the Center for Constitutional Rights (CCR) filed a federal class action lawsuit, Floyd, et al. v. City of New York, et al, which argues that the NYPD’s stop-and-frisk program violates the 4th Amendment of the U.S. Constitution that supposedly prohibits unreasonable searches, the 14th Amendment that supposedly granted equality to Black people, and the Civil Rights Act. Floyd argues that the NYPD unlawfully stopped the four named plaintiffs, overwhelmingly because they are men of color. This important lawsuit is now being heard in Federal Court in Manhattan.
CCR attorneys argue that the plaintiffs in this case represent the many thousands of others who have been stopped without any cause—on their way to work, in front of their house, or just walking down the street. Darius Charney, CCR’s lead attorney in the case, said in his opening statement when the trial started on March 18: "So really this trial is 14 years in the making, your Honor, as plaintiffs seek, at long last, to hold the city accountable for years of widespread racially discriminatory and unconstitutional stops and frisks."
This high-profile case is an important part of the overall struggle against stop-and-frisk—putting a glaring spotlight on what this horrendous violation of civil rights actually does to millions of people. The trial is being widely covered in the media—nationally and internationally. People around the country who face similar draconian police repression have their eyes on this case. The dramatic testimony coming out is prompting new rounds of discussion and debate among lots of different people. And the trial itself has become a gathering place for different groups and individuals who want to express their anger around stop-and-frisk and join the fight against it.
Each day, hundreds have packed the courtroom and the overflow room as well. Various community organizations, religious groups, students, political activists and others have mobilized to attend the trial. There have been lunchtime press conferences, rallies, speak-outs. Members of the Muslim American Civil Liberties Coalition have come out—as Muslims have been targeted by stop-and-frisk and also subjected to illegal surveillance by the NYPD. One day LGBT groups attended to raise awareness about how LGBT people are targets of stop-and-frisk, particularly young LGBT people of color. Another day, students and faculty from CUNY, where lots of Black and Latino students are victims of stop-and-frisk, held a press conference to speak out about their experiences of being stopped.
5 Million Stops
Since 2004, it has happened 5 million times. Cops subject someone to the NYPD policy of stop-and-frisk. Blacks and Latinos make up nearly 90 percent of those stopped in stop-and-frisk encounters, even though these two groups make up only 52 percent of the city's population. Almost 85 percent of the time the person is not doing anything illegal at all. But they get jacked up, interrogated and searched. Some are ordered to "assume the position," or lie face down on the ground. It can get even uglier. It's always humiliating.
For years, among the victims of stop-and-frisk, there has been tremendous resentment and anger. More recently, a growing struggle against stop-and-frisk has made many others in society aware of how this widespread practice systematically violates people's rights. And now this NYPD policy is actually being put on trial in New York City.
This case is being heard in court in the context of growing opposition and struggle against stop-and-frisk. There have been marches and protests. There has been civil disobedience at police precincts, leading to arrests and trials. Victims of stop-and-frisk have told their stories in the media. Prominent figures have come out against stop-and-frisk.
All this has created a very charged situation where the powers-that-be cannot ignore the fact that increasingly, in the eyes of many people, what the NYPD is doing is illegitimate. There have been two other legal cases that in some way questioned the NYPD policy, and the battle around stop-and-frisk in the legal arena has been very contentious—with the City of New York staunchly standing by its stop-and-frisk policy.
The City’s lawyers have fought against these court cases, trying to prevent them from even going to trial. Mayor Bloomberg has continued to get out loudly and frequently in the media, aggressively defending stop-and-frisk. New York chief of police Ray Kelly has continued to belligerently defend stop-and-frisk. The City claims stop-and-frisk is necessary to fight crime, even though only 6 percent of stops result in any arrests. It claims that stop-and-frisk gets guns off the streets, even though the rate of seizure of guns during stops is miniscule: 0.15 percent. And the City has argued that a court-ordered injunction banning stop-and-frisk would represent "judicial intrusion" and that they could not "guarantee that suspicionless stops would never occur or would only occur in a certain percentage of encounters." In other words, they are saying they cannot guarantee the police will not violate people's Constitutional rights.
In order to certify as a class, the plaintiffs in Floyd had to show that their circumstances are typical of an entire group of people—which in this case, is everyone stopped since January 2005 without reasonable suspicion of criminal activity. And this includes those stopped just because they are Black or Latino. When this case was granted status as a class action lawsuit, it meant that if the plaintiffs win their case, whatever remedy is imposed by the court will be imposed citywide. So in this way, what is being put on trial is not just what happened to four victims of stop-and-frisk but the NYPD’s entire stop-and-frisk program. The CCR explains, "The lawsuit does not seek money for the class of individuals who have been unlawfully stopped and/or frisked by the NYPD. Instead, it seeks to obtain a ruling from a federal court that aspects of the NYPD’s stop-and-frisk policies and practices are unconstitutional and should be fundamentally changed."
"It was on my block, it’s where I live."
The lead plaintiff, David Floyd, a Black medical student, testified how he was stopped twice—once as he was just walking down the sidewalk and a second time when he was helping a neighbor who had been locked out of their apartment. When asked how he felt after the first time he was stopped, Floyd said, "Definitely frustrated, humiliated, because it was—it was on my block. It's where I live. And I wasn't doing anything except for headed home. So, I—at that point I just—I really remember just wanting to get home, just wanting to kind of be in my own space." Then after the second time he said, "I think that it was, again, the humiliation. I think it was a little bit more though than the first time because it was the second time, because it wasn't—it wasn't down the block. It wasn't another neighborhood. It was actually on the property that I lived on and paid rent on every month. And, you know, I felt like—I felt like I was being told that I should not leave my home. Whether—and it didn't matter whether I was going to school. It didn't matter whether I was going to work or, you know, whatever it was that I need to stay in my place, and my place is in my home." (All testimony quotes are from court transcripts.)
At the end of his testimony, Floyd explained why he decided to serve as a plaintiff in this case, saying, "Well for me, first and foremost, you know, I didn't do anything. And, you know, I feel like I want to make that clear. I am not a criminal. I didn't commit any criminal acts. I am not guilty of anything and therefore I should not have been detained at any point in time. I think that for me personally, my personal character, you know, I'm big on justice and I'm big on responsibility. And if, you know, if there is no responsibility, if—in these instances police officers, you know, who are individuals carrying weapons. They are carrying guns. And if they're not being responsible, then, you know, to me it's—it just makes for a dangerous situation. It makes for a dangerous situation. And, you know, whatever it looks like, an irresponsible person with a gun is dangerous. And so with those two things in mind, to me is, you know, it was important to become a part of this."
"I don’t want anyone else to go through this."
Sixteen-year-old Devin Almonor took the stand to tell the story of how he was stopped when he was only 13 years old. He was walking home when he was stopped and questioned. He said that then "they began to grope me, they began to pat me down for any weapons." Then, he said, "They pushed me up against the car of the passenger side and they began—then they began to handcuff me."
When asked what his reaction to be handcuffed was at that point, he said, "fear." The lawyer asked, "Anything else? Did you do anything at that point?" And Almonor said, "I was crying."
The cops put him in the back seat of the police car and on the way to the precinct, Devin said one of the officers said, "Why are you crying like a little girl?"
Almonor was also asked why he decided to become a plaintiff in this case, to which he answered, "Because I believe that—I don't want anyone else to go through this incident because it's very frightful, and I am willing to fight against injustices."
"I felt degraded and hopeless"
Since his mother died of cancer, 24-year-old Nicholas Peart has been the legal guardian of three younger siblings—his two brothers, 12 and 13 years old; and a 20-year-old sister who is disabled. As another plaintiff in the case, Peart testified about being the victim of stop-and-frisk four times.
The first incident was in Harlem in April of 2011. He described his clothes: "I was wearing sneakers. I had on jeans. And a hoodie." He described what he was doing at the time: "I had been going to the corner store, the corner bodega to pick up some milk for my siblings for them to have the next morning."
He said he was texting when he was stopped by two cops who took his cellphone and then told him to put his hands up against the wall of a church. Then, he said, "I was patted down over my upper body, my arms, both my arms, my lower body as well, both my legs"—then handcuffed. It was the first time in his life, Peart said, he had ever been handcuffed. He talked about how the police took his keys and went into his building, how he was afraid for his younger brothers and sister.
What did he feel at that point? "I felt criminalized," Peart said, "For me to be stopped on my way to the corner store that's up the block, and to be treated like that by someone who works for New York City, I felt degraded and hopeless."
He was put in the back of the police car and the cops then took off his sneakers. They asked him if he had any weed on him and then patted over his socks.
In the second incident, in August 2006, Peart was with his cousin and some friends. Three cars came up to them and at least five cops came out with their guns pointed at them and told them to "get down on the ground." As they lay face down, the cops patted them down. Peart told the court, "They patted over my basketball shorts and I was touched." The judge asked him, "You could feel them touching you in the groin area?" and he answered, "Yes."
When a lawyer for the plaintiffs asked him what he was thinking as he laid there on the ground getting patted down, Peart said, "I was thinking—I was embarrassed because—I felt I didn't belong on 96th Street and Amsterdam, you know, me turning 18 and being in that area, I felt that I didn't belong there. I felt embarrassed because the people that were out there at that point seeing what happened, I felt criminalized. My cousins, they had been visiting me from the suburbs in the Poconos, and they had never been through anything like that, and their parents let them celebrate their birthday with me and something like that happens... I was embarrassed, and I felt like I didn't belong on 96th Street and Broadway... I felt criminalized for being in that neighborhood."
Peart then went on to describe two more times where he was violated by stop-and-frisk. In the spring of 2008, in Brooklyn, in East Flatbush as he was coming from his grandmother's house he was stopped by two cops who made him put his hands up against a garage door and then patted him down. Then in September 2010, as he was coming home from the gym, listening to his iPod, two officers walked up, told him to put his hands up against the wall, unzipped his jacket, then took his wallet went through it.
The System Behind Stop-and-Frisk
These testimonies paint a vivid and ugly picture of how stop-and-frisk creates a whole repressive situation where for millions of people there is always the threat that you could be stopped for no reason at all—put up against the wall, disrespected, humiliated, maybe unjustly arrested, beat up, or worse. If you’re Black or Brown—it doesn't matter who you are. You could be a doctor or have a PhD and still be "suspicious." If you’re a teenager wearing the "wrong clothes" and looking back "the wrong way," then for sure you're going to get jacked up. Many young Black men tell you they've been stopped at least 20 times, the first time perhaps when they were 11 or 12.
This form of social control by the powers-that-be criminalizes a whole section of people and is part of what many call the "new Jim Crow." Here, just like in the South when all Black people faced the real fear they could be lynched by the KKK, we've got a situation where anyone, just by the fact that they are Black or Latino—and especially if they are young—can never walk anywhere without the constant fear that they will be stopped and frisked and have their rights violated by the NYPD.
WHY does this system—with its armed enforcers—have conscious policies like stop-and-frisk not just in New York City, but in cities all around the country?
In this country nearly 2.4 million people are behind bars, the majority Black and Latino men, and stop-and-frisk serves as a pipeline for this mass incarceration. Millions of people, especially Black and Latino youth, stopped: One thing can lead to something else. You get stopped, for nothing. You're now in the database, labeled a "gang member." Maybe you get charged for something small. It all adds up. Pretty soon you find yourself facing time and you're one of the millions who end up in prison. If you ever get out, you're marked for life, denied a job, housing, benefits, the right to vote and more.
As Carl Dix of the Revolutionary Communist Party says, "Let’s pull back the lens and look at the larger picture. The skyrocketing incarceration rates in the U.S. began in the 1970s, in the aftermath of the urban rebellions of the 1960s which spearheaded the development of a revolutionary movement that rocked the U.S. government back on its heels, and as the process of searching for greater profit margins was driving the shift of manufacturing out of the U.S. to countries around the world. From one end, the U.S. rulers felt a need to exert greater control over Black youth to ensure they would not be in position to spark another round of uprisings and all that could mean. At the same time, the shift of manufacturing was leaving growing numbers of young Black people without legitimate means to survive and raise families." (See "Mass Incarceration + Silence = Genocide" at blackagendareport.com.)
"Handcuff the kids anyway"
The CCR also put on the stand NYPD officers testifying for the plaintiffs. Officer Adhyl Polanco talked about how there are basically mandated quotas for stop-and-frisk stops. He said he was told by one supervisor that if he didn't make a certain amount of stops, "you'll become a pizza delivery man" and that there were significant consequences if he didn’t fulfill the expected numbers of UF-250 forms (filled out for each stop-and-frisk stop). These, he said, ranged from being denied overtime, having one's tour (shift) changed, or being subjected to performance monitoring.
Another NYPD cop, Pedro Serrano, testified that he was afraid he would be disciplined for not meeting the "performance goals," so he began recording his performance reviews with supervisors. He said he did these recordings because "I needed proof... They are asking me to do something illegal, stopping people illegally."
Polanco said that basically, what the cops were told was that if they saw a group of Black or Latino kids on a corner they were to stop them and even if there were doing nothing wrong, "handcuff the kids anyway." On one tape, played in court, Polanco’s supervisor tells him, "The problem was what? Male blacks. And I told you that at roll call, and I have no problem telling you this: male blacks 14 to 20."
Polanco said, "We are illegally stopping and illegally frisking young Black and Hispanic people." He also got very emotional when he told the court why he had decided to be part of the lawsuit, saying, "As a Hispanic, walking in the Bronx, I have been stopped many times. It's not a good feeling. I promised as an officer I would respect everyone to my abilities. I just want to do the right thing. That's all."
State Senator Eric Adams, a 22-year veteran of the NYPD, testified about a conversation he had with Police Commissioner Ray Kelly in July 2010. Adams said when he raised concerns about stop-and-frisk unfairly targetting Blacks and Latinos, Kelly said "that he targeted or focused on that group because he wanted to instill fear in them, every time they leave their home, they could be stopped by the police."
In addition to vivid testimony from victims of stop-and-frisk, the CCR lawsuit also includes an impressive amount of documentation showing how the NYPD's stop-and-frisk policy carries out racial profiling and therefore violates the Equal Protection Clause of the 14th Amendment.
Expert witness Professor Jeffrey Fagan testified, explaining his analysis of a decade's worth of stop-and-frisk data—two reports that analyze information recorded by police officers in their stop-and-frisk reports (UF-250 forms) between 2004 and June 2012. As the CCR said in their daily summary, "Fagan’s research shows what millions of New Yorkers already know from personal experience—that people get stopped for no other reason than being black- or brown-skinned."
This is just some of what Fagan’s reports reveal:
- Blacks and Latinos are significantly more likely to be stopped than whites. Overall, Blacks and Latinos constitute 84 percent of the stops, a far higher percentage than their proportion of the city's population (54 percent). Black and Latino males ages 14 to 24 are 4.7 percent of the city’s population, but they were 42 percent of stops in 2011. In fact, there were more stops of young Black men (168,216) than there were young Black men in the city (158,406).
- Most stops occur in Black and Latino neighborhoods. Even after adjustments for other factors including crime rates, social conditions and allocation of police resources in those neighborhoods, race is the main factor determining NYPD stops.
- Nearly half of all documented stops are justified by citing the vague category "furtive movements." In more than half of all stops, NYPD officers cite "high crime area" as an "additional circumstance" even in precincts with lower than average crime rates. The Supreme Court has found it specifically unconstitutional to stop-and-frisk a person simply because they are in a so-called "high-crime" neighborhood.
- Black and Latino suspects are more likely to be arrested rather than issued a summons when compared to white suspects who are accused of the same crimes. Black and Latino suspects are more likely to have force used against them. Black and Latino people (58 percent) were more likely to be frisked than white people (44 percent)—but less likely to be found with a weapon.
- Only 6 percent of stops result in arrest. This is an extraordinarily small number given that stops are legally supposed to be based on reasonable, articulable suspicion.
- One gun was recovered for every thousand people stopped from 2004 through June 30, 2012. This means that the rate of seizure of weapons is nearly zero—a disturbingly low return for a law enforcement tactic which the NYPD itself claims is designed specifically to remove illegal guns from the streets.
Stop-and-Frisk IS the Crime
The growing struggle to STOP stop-and-frisk, including this trial, is putting a damning spotlight on stop-and-frisk. This is a big problem for the powers-that-be, which has given rise to differences within various ruling class figures over how to respond.
While Mayor Bloomberg and NYPD Commissioner Kelly continue to unequivocally defend-stop-and frisk, other politicians and figures within the NYPD are calling for the policy to be "reformed." But to be clear, the concern on the part of all these ruling class forces is NOT for the victims of stop-and-frisk who are having their rights violated every day. The concern is for the legitimacy and stability of the system and its ability to control and rule over people—including getting people to accept and cooperate with this whole repressive set-up.
John A. Eterno, a retired New York City police captain, voiced this concern: "Interactions like stop-and-frisk bring serious problems, weakening trust and cooperation with the police... This approach alienates minority communities and youth who could be helping to fight crime. If they see something, they will not say something to officers abusing their authority and not working with communities. This is a key principle of community policing."
As Bob Avakian has pointed out: "The role of the police is not to serve and protect the people. It is to serve and protect the system that rules over the people. To enforce the relations of exploitation and oppression, the conditions of poverty, misery and degradation into which the system has cast people and is determined to keep people in. The law and order the police are about, with all of their brutality and murder, is the law and the order that enforces all this oppression and madness." (BAsics 1:24)
The CCR points out that this class action suit against stop-and-frisk "is the culmination of more than 15 years of work by the Center for Constitutional Rights and the solid determination of a citywide movement that has made stop and frisk a central issue in New York City politics." Now this trial, in turn, is contributing to the growing awareness and movement against stop-and-frisk. The eyes of people around the country and the world are on this trial, and the damning testimony and evidence is bringing them the truth that, as one of the chants at STOP stop-and-frisk protests says: "Stop-and-frisk don’t stop the crime—stop-and-frisk IS the crime!"